Prokopchuk v. Borowski

In this case the Ontario Superior court was faced with determining an order for costs.  This case is an excellent demonstration in what will guide a court in making an award for damages.

Ms. Borowski was awarded sole custody of the couple’s six year old daughter. She was also given permission by the court to relocate with the child from Ontario to Alberta.  She had made an offer to settle before going to trial in which she had offered  Mr. Prokopchuk generous access and requiring no child support while she would retain sole custody, premised on whether or not the court would permit her to relocate.  Mr. Prokopchuk made an offer to settle as well, he offered to pay child support, but also sought out joint custody.

The court determined that Ms. Borowski had been completely successful at trial. She was granted sole custody, and she was allowed to move to Alberta. The court required Mr. Prokopchuk to pay child support, but required Ms. Borowski to pay for his transportation costs when exercising his access rights.  Due to her success, Ms. Borowski was presumptively entitled to her costs.

The court had to determine whether or not to award Ms. Borowski was entitled to full recovery costs.  Such costs are awarded when bad faith is established, or when an offer has been matched or bettered, according to Rule 18 of the Family Law Rules.   The court determined that while Mr. Prokopchuk did unnecessarily delay the trial through attacking Ms. Borowski’s roommate, and excessively cross-examining a clinical investigator and a Psychologist this was not bad faith within the meaning of Rule 24(8) of the Family Law Rules.   The court determined that Ms. Borowski’s offer was matched or bettered by the court’s decision, and satisfied Rule 18.

The court then assessed costs.  The court considered what is fair and reasonable for the unsuccessful party to pay, and what the unsuccessful party might expect to pay.  The court rejected Mr. Prokopchuk’s request to alter the amount based on humanitarian grounds, stating that he knew the risk or paying costs if he failed in litigation.  The court determined that a fair and reasonable amount, and what an unsuccessful party might expect to pay would be $45,000 of the $51, 985.49 which Ms. Borowski had incurred in legal costs.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past twelve years (2007 to 2018 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has 2 Comments
  1. This case demonstrates the need for people to understand the risks when they ignore offers to settle. By ignoring the reasonable offer to settle the husband doubled the cost of his divorce; assuming he paid a similar amount for legal fees as the wife; his bill for this litigation was over $100,000. If the husband is in the highest tax bracket, this litigation could end up costing him nearly $200,000 in before tax income. It shows how incredibly expensive litigation can become.

  2. How can any moral individual consider an offer “reasonable” when one parent is threatening to take a child away from the other parent. This is immoral and unconscionable. Law used to be based on a “reasonable man test”. No reasonable parent could agree to knowingly allow their children to be taken away from them. It is un-natural. Costs are not reasonable in the instance of a mobility trial. In fact, The Honourable Mr. Justice M.D. Parayeski goes so far as to state in Bridgeman v. Balfour, 2009 CanLII 64814 (ON SC), the following:

    The Court thanks counsel for their written submissions on costs. While it is entirely true that the applicant has been successful on all of the issues raised in her application, including the key question of mobility rights, the presence of that issue alone made settlement very difficult. In such applications, no matter how fair the applicant has been, or how reasonable his or her offer to settle may appear in hindsight, the respondent is put into the position of either litigating to the bitter end or agreeing to changes that will inevitably and likely substantially alter his or her relationship with the child or children. Although she had every right to do so, it was the applicant who put the respondent into the position of having to make that hard choice. The Court disagrees with the submission of the applicant’s counsel that the presumption that the winning party ought to be awarded costs should apply in this instance. There shall be no order as to the costs of the application.

    How can there be such a divergence between various Judges of the same level court? Isn’t there one law for all?

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